B-140930, NOV. 9, 1959

B-140930, NOV. 9, 1959

TO THE SECRETARY OF COMMERCE:

THE LETTER OF OCTOBER 6, 1959, FROM THE ASSISTANT SECRETARY OF COMMERCE, POINTS OUT THAT UPON THE BASIS OF OUR DECISION B-136235, DATED JUNE 26, 1958, YOUR DEPARTMENT CHANGED ITS POLICY OF CREDITING SICK LEAVE ACCRUALS FOR EACH BIWEEKLY PAY PERIOD FROM THE BEGINNING OF THE PAY PERIOD TO THE END OF SUCH PERIOD. FURTHER, THE LETTER DIRECTS ATTENTION TO OUR LATER DECISION B-139805, SEPTEMBER 2, 1959 (39 COMP. GEN. 151) TO THE SECRETARY OF AGRICULTURE. IN THAT DECISION WE HELD THAT "WHILE THE LANGUAGE OF THE CURRENT SICK LEAVE STATUTE IS SOMEWHAT DIFFERENT FROM THAT APPEARING IN THE 1936 ACT WE DO NOT CONSIDER THAT IT NEED BE REGARDED AS PROHIBITING YOUR DEPARTMENT FROM CONTINUING THE POLICY OF PERMITTING EMPLOYEES TO BE CREDITED WITH SICK LEAVE AT THE BEGINNING OF THE FULL BIWEEKLY PAY PERIOD AND ITS USE DURING THE SAME PAY PERIOD.' AS A RESULT OF THAT DECISION YOUR DEPARTMENT IS TAKING IMMEDIATE STEPS TO RETURN TO YOUR FORMER POLICY OF CREDITING SICK LEAVE AT THE BEGINNING OF EACH BIWEEKLY PAY PERIOD.

UNDER THAT CHANGE YOUR DEPARTMENT HAS FOUND THAT A NUMBER OF EMPLOYEES ABSENT BECAUSE OF SICKNESS AFTER AUGUST 5, 1959, THE DATE OF CHANGE FROM YOUR DEPARTMENT'S FORMER POLICY, WERE REQUIRED TO TAKE LEAVE WITHOUT PAY BECAUSE SICK LEAVE WAS NOT AVAILABLE UNDER THE NEW POLICY.

CONCERNING THOSE INSTANCES WE ARE REQUESTED TO ADVISE WHETHER OUR OFFICE NOW WOULD BE REQUIRED TO OBJECT TO THE SUBSTITUTION OF SICK LEAVE FOR THE LEAVE WITHOUT PAY CHARGED BASED UPON THE FOLLOWING STATED REASONS:

"1. THE DEPARTMENT'S POLICY WAS CHANGED SOLELY IN THE BELIEF THAT THE DECISION OF YOUR OFFICE OF JUNE 26, 1958 PERMITTED NO OTHER COURSE OF ACTION.

"2. THE DEPARTMENT'S POLICY WOULD NOT HAVE BEEN CHANGED IF THE DETERMINATION REACHED BY OUR OFFICE IN DECISION OF SEPTEMBER 2, 1959 COULD HAVE BEEN DEDUCED FROM THE EARLIER DECISION.

"3. THE EMPLOYEES WHO WERE REQUIRED TO TAKE LEAVE WITHOUT PAY BECAUSE OF ILLNESS ARE NEW EMPLOYEES OR THOSE WHO HAVE EXHAUSTED SICK LEAVE BALANCES AND WOULD HAVE BEEN GRANTED SICK LEAVE UNDER THE PRIOR POLICY OF THE DEPARTMENT.

"4. DURING THE BRIEF PERIOD IN WHICH THE RESTRICTIVE POLICY WAS IN EFFECT (AUGUST 5, 1959 TO THE PRESENT), EMPLOYEES WHO WERE SICK AND LOST PAY DURING THIS PERIOD, WILL HAVE BEEN TREATED UNEQUALLY, DESPITE OUR WISH TO TREAT THEM LIBERALLY, COMPARED WITH OTHER EMPLOYEES WHOSE ABSENCE BECAUSE OF SICKNESS OCCURRED PRIOR TO AUGUST 5, 1959, OR MAY OCCUR AFTER THE PRESENT DATE.'

OUR DECISION B-139805, SEPTEMBER 2, 1959 (39 COMP. GEN. 151) POINTED OUT THAT THE CONCLUSION REACHED BY US IN B-136235, JUNE 26, 1958, COVERED THE FACTUAL SITUATION THERE PRESENT AND WAS NOT INTENDED TO CHANGE THE EXISTING ADMINISTRATIVE PRACTICE OF CREDITING BIWEEKLY SICK LEAVE ACCRUALS.

IN VIEW OF OUR CONCLUSION IN B-139805, SEPTEMBER 2, 1959 (39 COMP. GEN. 151), AND FOR THE REASONS OUTLINES BY THE ASSISTANT SECRETARY, WE WILL NOT OBJECT TO THE REQUESTED SUBSTITUTION, IN OTHERWISE PROPER CASES WHEN LEAVE WITHOUT PAY WAS CHARGED AN EMPLOYEE AFTER AUGUST 5, 1959, AND BEFORE THE DATE YOU RETURN TO YOUR FORMER POLICY.